Dasappa Chettiar vs S.R. Venkatarama Chettiar and Sons

Suryamurthy , J.—This is a civil revision petition against an order of the learned principal Subordinate Judge, Salem, rejecting the objections

of the judgment debtor, against whom R, E. P. No. I of 1981 in O. S. No. 411 of 1975, on the file of the Sub Court Salem had been filed for sale

of the hypotheca. The judgment-debtor who is the revision petitioner herein contended that by an order dated 31-10-1980, the Revenue Divisional

Officer. Salem had declared that he is entitled to the benefits of Tamil Nadu Act 13 of 1980 and had directed the Special Tahsildar (DR) Salem, to

issue a redemption certificate to him. that thereby the debt had been wiped out and that, therefore, the execution against him is not maintainable.

This contention of the judgment-debtor having been overruled by the executing court, this revision has been preferred,

The mortgage decree against the judgment-debtor was obtained on 30-11-1979. Thereafter the judgment-debtor filed an application before the

Special Tahsildar (Debt Relief) under Tamil Nadu Act 13 of 1980, to be referred to hereafter as the Act. That petition was dismissed and

thereupon an appeal in Roe. No. 18908/80/R 4 was filed before the Revenue Divisional officer. BY an order dated 31-10-1980, the Revenue

Divisional Officer declared that the judgment-debtor is entitled to the benefits of the Act and directed the Special Tahsildar (Debt Relief) to issue a

redemption certificate. However, after this order was passed, ordinance 11 of 1980, which was followed by Act 10 of 1981. came into force. The

judgment-debtor was held to be entitled to the benefits of S. 4 of the Act, because the income from his properties was less than Rs. 800, per

annum. However, by reason of S. 7 of Act 10 of 1981, the redemption effected by the issue of a certificate on the direction of the Revenue

Divisional Officer by the Special Tahsildar (Debt Relief) should be deemed to have never taken place and the debt is revived. S. 7 of the Act 10 of

1981 lays down that -

Where any person who was a debtor as defined in S. 3(d) of the principal Act as in force immediately before the 20th Nov. 1980, has ceased to

be a debtor on and after that date by virtue of the amendments made by this Act to the principal Act, any debt due from such person shall be

deemed never to have been discharged, every suit or other proceeding (including appeal, revision, attachment or execution proceeding) in relation

to such debt pending at the commencement of the principal Act against the debtor for the recovery of any such debt (including interest, if any) shall

be deemed never to have been abated. every movable property pledged by the debtor in respect of such debt in favour of the creditor shall be

deemed never to have been released in favour of such a debtor, and every mortgage executed by the debtor in respect of such debt in favour of

the creditor shall be deemed never to have been redeemed and the mortgaged property shall be deemed never to have been released in favour of

such debtor under S. 4 of the principal Act, and any suit for the recovery of any amount liable in respect of such debt from the debtor and any

application for the execution of a decree passed in any such Suit may be instituted, or made, as if the principal Act as amended by this Act was in

force at the relevant time."" Act 10 of 1981 lays down that in S. 3 of the principal Act to clause (d) the following proviso shall be added, namely-

''Provided that a person shall not be deemed to be a debtor, if he or any member of his family - (vii) whether individually or jointly owns in this

State or elsewhere both agricultural lands and other immovable property, the market value of both such agricultural lands and other immovable

property exceeds twenty five thousand rupees.

The hypotheca in the instant case has been valued by the judgment-debtor himself at Rs. 36,000 for the purpose of fixing the upset price. The

mortgage was for a sum of Rs. 12,000 in 1965. Since then the value of properties in Salem town have increased fourfold, a fact of which I can

take judicial notice. Therefore, the property now sought to be brought to sale itself should be worth more than Rs. 36,000. Hence, the judgment-

debtor is not a debtor within the meaning of the Act and read with the amendment, he is not a debtor entitled to the benefits of the Act and

consequently, the mortgage in favour of the decree-holder shall not be deemed to have been redeemed by reason of the certificate. if any, issued

by the Special Tahsildar (Debt Relief) under the direction of the Revenue Divisional Officer in the proceedings referred to above. Learned counsel

for the revision petitioner now states that no such certificate was issued by the Special Tahsildar. This, of course, does not alter the matter and

change the situation in any manner to the advantage of the revision petitioner.

Though the mortgage had ripened into a decree, I am unable to make any distinction between a mortgage decree and a mortgage debt, so far as

the application of S. 7 is concerned. Therefore, I find that the mortgage decree is deemed to have been revived or the mortgage is deemed not to

have been redeemed and consequently, the decree holder is entitled to execute the decree This revision is, therefore, dismissed. No costs.

Revision dismissed.